The judge for Lott’s lawsuit against Levitt has thrown out Lott’s claim that he was defamed by Freakonomics. (Decision is here.)

Some quotes from the decision:

The Court will grant a motion to dismiss under Rule 12(b)(6) only if “no relief could be granted under any set of facts that could be proved consistent with the allegations” … When considering a motion to dismiss under Rule 12(b)(6), this Court views all facts alleged in the complaint, as well as any inferences reasonably drawn from those facts, in the light most favorable to the plaintiff.

By claiming that other scholars have tried to “replicate” his research and results, but come to different conclusions than Lott, Lott claims that the sentence in Freakonomics alleges that “Lott falsified his results.” … In everyday language, replicating “results” does not necessarily mean analyzing data in identical ways, and thus it is reasonable to read the sentence at issue as not accusing Lott of falsifying his results. In fact, it is more reasonable to read the sentence at issue as stating that other scholars testing the same hypothesis have done separate research, with possibly different data and statistical analyses, and come to different conclusions, thus disproving Lott’s theory

The litany of partial dictionary definitions of “replicate” cherry-picked by Lott do not change this analysis.

Lott cherry picks so often that I had to create a category on my blog for all of the examples. (My favourite example is this one.) Now it’s official: a court has said that he cherry picks.

Lott takes some solace in the fact that his claim that Levitt defamed in an email wasn’t thrown out, but it’s hard to see what damage Lott can demonstrate from an email to one person who doesn’t seem to have believed it (since he forwarded it to Lott).

Great decision! Of course, now the whole thing really comes down to facts- how the “special edition” came to be, who paid for it, and who selected the articles. I would expect this to settle on nuisance value, but would love to see it get to trial, particularly because Lott admitted that he raised the funds to cover the edition’s printing and mailing costs. I can hardly even imagine the parade of experts, publishers from academic journals of all kinds, testifying on that particular point.

This was a motion to dismiss by Levitt, so that means at this stage that the judge is required to interpret all disputes against Levitt and in favor of Lott. At trial, Lott has the burden of proof.

Example: Lott says he was defamed as “buying” a special issue, while admitting he paid for printing and mailing costs. The judge let that claim go forward, but good luck with that winning at trial.

Reading between the lines, though, the judge seems overly hostile about a two-sentence email sent to one person. I’m not sure the judge understands either email or academia. I wouldn’t eliminate the chance that Lott will have some token victory at trial. If that’s the case, I hope that Levitt appeals.

Interesting. Eli is not sure that the judge erred on the Email being potentially defamatory on its face if not true, but he is sure that in doing so, he gave Levitt a hunting license to go dig into AEI’s files. Lott and AEI are gonna find that discovery is not just a cable TV channel.

a court has said that he cherry picks.
Well, no. It is standard legalese to write the name of the client when what is meant is the lawyer. When the Court says “Lott” cherry-picks, it means that the brief written by Lott’s lawyer cherry-picks. And accusing a lawyer of “cherry-picking” is far less condemnatory than accusing a scientist of doing the same. A lawyer’s professional ethics require “zealous” advocacy and everything he says or does is opposed by another equally zealous advocate. A scientist’s ethics demand scrupulous impartiality such that what he or she writes can be relied on as a stand-alone document without need to refer to an opposing piece.

JB – lawyers are supposed to understand the difference between being an advocate in an adversarial situation, and being engaged in the performance of a public trust. The advocate does not care about truth. Truth is the province of the fact-finder: the judge or the jury. But when lawyers take on other roles- when they become judges, or government officials- they are supposed to put aside their adversarial habits. Sometimes, ufortunately, they don’t.

It may be different in other countries, but sadly, here in the US, lawyers have basically sold out to the highest bidder — and not just with regard to their professional responsibility to act as advocates for their client.

There is a difference between “advocate” and “whore” and many lawyers either do not understand or choose to ignore this distinction.

Yes, a private communication can be defamatory. Whether this one is, is another question.

I’m not quite as dismissive of the damages question, although lawyers who know this area of the law better than me seem to think otherwise. While the email was private, it has since been disseminated widely, something that Lott could argue was foreseeable.